Non Raceday Inquiry RIU v S Murtha – Decision on Penalty dated 29 July 2016 – Chair, Mr R McKenzie
ID: JCA15755
Decision:
BEFORE A JUDICIAL COMMITTEE
AT CHRISTCHURCH
IN THE MATTER of the New Zealand Rules of Harness Racing
IN THE MATTER of Information No. A1683
BETWEEN S P RENAULT, Stipendiary Steward for the Racing Integrity Unit
Informant
AND SHELDON PHILLIP MURTHA, Licensed Advanced Amateur Driver
Respondent
Judicial Committee: Mr R G McKenzie (Chairman), Mr D Jackson (Committee Member)
Date of Decision: 29 July 2016
DECISION OF JUDICIAL COMMITTEE ON PENALTY
Background
[1] Mr Murtha was charged that, at the meeting of New Zealand Metropolitan TC held at Addington Raceway on 29th April 2016, as the driver of NUI TOC TIEN in Race 1, Hydroflow – Bishopdale / Bush Inn TAB’s Mobile Pace, he failed to take all reasonable and permissible measures to ensure his horse was given full opportunity to win the race or to obtain the best possible position and/or finishing place, a breach of Rule 868 (2) of the New Zealand Rules of Harness Racing.
[2] In a reserved decision dated 12th July 2016, the Committee found that the charge had been proved.
[3] The Committee has now received written submissions in relation to penalty from both parties.
Submissions of the Informant
[4] Mr Renault presented the following submissions
(1) In considering penalty, the Judicial Committee should have regard to the gravity of the breach, the outcome of the race and whether race goers were affected by the breach, and the personal circumstances of the Respondent.
(2) Mr Murtha has a clear record under this Rule. He has driven 74 races lifetime, 13 this season and 13 last season.
(3) The starting point for a breach of this Rule is a 15 drive suspension or a $750 fine. Stewards believe the appropriate penalty is one of a suspension and fine combined.
(4) Recent charges in relation to Amateur Drivers under Rule 868(2) are -
Wilmott 2016 – Suspended 2 months and fined $300
Hallett 2015 – Suspended 2 months and fined $300
Blake 2015 – Suspended 8 weeks and fined $400
(5) All three aforementioned drivers admitted a breach of this Rule and were given credit for their admission.
(6) The only mitigating factor in this case is the fact that Mr Murtha has not breached this Rule before.
(7) Any suspension must be a meaningful one. All three drivers in the recent cases drive in every amateur race where possible, which is approximately 2 drives per month.
(8) Based on the facts regarding Mr Murtha’s frequency of drives. It would be correct in saying that he only drives about once per month. Any suspension must be longer than the cases referred to as a result of this.
(9) Stewards submit that a period of suspension of 3 – 4 months and a fine of $300 - $400 is appropriate.
(10) Stewards make no application for costs.
Submissions of the Respondent
[5] Mr Murtha filed written submissions. Much of the content of those submissions was not relevant to penalty but was rather a criticism of the Stewards’ racenight procedure, the conduct of the hearing and this Committee’s decision. Accordingly, we have not addressed that part of Mr Murtha’s submissions.
[6] Mr Murtha’s relevant submissions may be summarised as follows:
(1) Mr Murtha is an amateur driver and not a professional.
(2) Mr Murtha has been driving since the inception of amateur racing and has a clear record of any driving offences.
(3) Mr Murtha is currently and has been heavily involved in the development and promotion of harness racing for a number of years.
(4) The race was at the lower end of the spectrum in terms of stakes and status as an amateur drivers’ race.
(5) Unlike the Hallett and Wilmott cases referred to in the Informant’s submissions, this was not a situation of driver error due to a lack of awareness in a race but was more a situation of deliberate tactics in a race not proving successful.
(6) Mr Murtha should not be penalised for defending the charge against him as opposed to making an early guilty plea. The reason for this is that it took the Stipendiary Stewards two weeks to file the information against Mr Murtha as opposed to charging him on the race night. This indicated that there was at least some uncertainty as to whether or not a charge was appropriate which justifies Mr Murtha defending the charge.
(7) If a suspension of Mr Murtha’s licence is imposed, the recent cases against amateur drivers under this Rule have imposed the following penalties:
• Yoakley (March 2015) – 11 weeks’ suspension
• Blake (May 2015) – 8 weeks’ suspension, $400 fine
• Cronin (May 2015) – 10 weeks’ suspension
• Hallett (December 2015) – 2 months’ suspension, $300 fine
• Wigg (February 2016) – 8 drives (suspended 28 January to 31 May 2016)
• Wilmott (June 2016) – 2 months’ suspension, $300 fine.
(8) In the Wigg case, the Committee made the comment:
We do not know how many drives that those suspensions involved and it is difficult for raceday Committees to calculate drives for Amateur Drivers.
We are going to deal with this suspension in terms of drives (rather than weeks) as provided by the guidelines and we believe that a suspension of Ms Wigg’s Licence until the 31st May will involve approximately 8 drives.
(9) It is submitted that if a penalty is imposed on Mr Murtha, it is more appropriate that it should be calculated in terms of raceday drives rather than months or weeks.
(10) If a suspension is to be imposed, given the circumstances of the case and the conduct in the other cases mentioned above, a suspension of no more than 4 weeks and a $200 fine is appropriate.
Reasons for Penalty
[7] The starting point, as always, for this Committee in deciding an appropriate penalty is the Penalty Guide for Judicial Committees. In the case of a breach of Rule 868 (2), the Penalty Guide provides a starting point of “15 drives or $750 fine”. The Guide provides that Judicial Committees are expected to operate within the guidelines set out.
[8] From that starting point, we need to have regard to the various aggravating and mitigating factors. We must take into account the gravity of the offending and the desirability of consistency with how similar offenders committing similar breaches in similar circumstances have been dealt with.
[9] The principal aggravating factor is the consequential effects on the connections of the horse and the betting public who supported NUI TOC TIEN, the each-way favourite for the race. Those who invested on the horse were denied a run for their money and the owners of the horse were denied the opportunity of competing for a stake.
[10] The principal mitigating factor is Mr Murtha’s previous good record under the Rule in just over 70 career drives as an Amateur Driver. Mr Murtha has submitted that he should not be penalised for defending the charge and the Committee accepts that submission. An admission of a breach of the Rules is a mitigating factor when it comes to penalty, but defending a charge is not an aggravating factor but, rather, the absence of that mitigating factor.
[11] Although not an aggravating factor, but rather the absence of a mitigating factor, Mr Murtha has displayed a lack of insight and understanding as to the charge, which is of concern. It was put to Mr Murtha at the hearing by the Committee that the Rule required a horseman to take all reasonable and permissible measures to finish in the highest possible finishing position. In response, Mr Murtha replied:
You are always trying to win the race. You are trying to drive your horse to win the race. You are not sort of mentally concerned with running 4th or 5th or 6th , or 3rd or 2nd – you are actually trying to win the race.
And earlier, he said:
Yeah, but I think the Rule is sort of in that way that if we all go out there and decide that we’re just going to finish in the best possible position we, you know, we’re all breaking that Rule for a start. If I go out there saying well as long as I finish in the top three . . .
[12] There are a number of helpful previous cases involving amateur drivers and breaches of Rule 868 (2). Penalties handed down by Judicial Committees in those cases ranged from suspensions between eight weeks and four months and, in three of the cases involving an 8 weeks’/ 2 months’ suspension, fines between $300 and $400. Mr Murtha, in his submissions, attempted to distinguish two of those cases claiming that they involved “driver error due to a lack of awareness in a race” whereas, in his own case, it was a “situation of deliberate tactics in a race not proving successful”, he submitted. We disagree. All cases, including the present case, involved some error of judgement on the part of the driver, so serious as to be culpable.
[13] Mr Renault has submitted that an appropriate penalty would be a suspension of 3-4 months and a fine of $300-400, no doubt basing that submission on the other cases referred to. For his part, Mr Murtha has submitted for a suspension of no more than 4 weeks and a $200 fine which, we note, is approximately half of the penalty imposed in the Blake, Hallett and Wilmott cases.
[14] Mr Murtha further submitted that the Committee should give consideration to a penalty based on a number of drives rather than weeks or months. In support of that submission, he referred to the Wigg case in which, although the Committee imposed a suspension of 8 drives, the effective term of suspension as expressed in that decision was four months.
[15] This Committee is also inclined to calculate the suspension in this case in terms of number of drives. In doing this, we have looked at Mr Murtha’s driving record over the past three seasons. In the current season for Amateur Drivers, Mr Murtha has had 13 drives to date, in the 2014/2015 season he also had 13 drives and, in the two seasons before, 2013/2014 and 2012/2013, he had 16 and 17 drives respectively. So, Mr Murtha averages approximately 15 drives per season.
[16] The Committee notes that, in all of the other cases referred to by Mr Murtha in his submissions, the Respondent had admitted the breach and was given appropriate credit for doing so. As stated above, Mr Murtha can receive no such credit. The only credit available to Murtha is for his good driving record.
[17] The Committee agrees with the comment of the Judicial Committee in Wigg that “it is difficult for raceday Committees to calculate drives for Amateur Drivers”.
[18] Weighing all factors in this case, the Committee is of the view that a suspension for 10-11 drives is appropriate. Applying this to Mr Murtha’s driving statistics as set out in paragraph [13] above, this would equate to a term of suspension of 8 months.
[19] However, it has been the practice of Judicial Committees to impose a mixed penalty of a term of suspension together with a fine. The reasoning behind imposing a fine is to shorten the period of suspension. The Penalty Guide provides that Judicial Committees should equate one drive with a fine of $50.
[20] On this basis, the Committee has decided to reduce the period of suspension from 8 months to 4 months (4-5 drives approximately) and, in addition, to impose a fine of $300 intended to equate to approximately 6 drives.
Penalty
[21] Mr Murtha’s Advanced Amateur Driver’s licence is suspended from after the close of racing on Sunday, 31st July 2016 for a period of 4 months to 1st December 2016, on which date he may drive.
[22] In addition, Mr Murtha is fined the sum of $300.
Costs
[23] There will be no order as to costs.
R G McKENZIE D JACKSON
Chair Committee Member
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 31/07/2016
Publish Date: 31/07/2016
JCA Decision Fields (raw)
Dmitry: This section contains all JCA fields migrated from the raw data.
Data from these fields should be mapped appropriately to display amongst the standard fields above; please make note of any values below that are missing in the above standard fields but should be there.
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decisiondate: 31/07/2016
hearing_title: Non Raceday Inquiry RIU v S Murtha - Decision on Penalty dated 29 July 2016 - Chair, Mr R McKenzie
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Decision:
BEFORE A JUDICIAL COMMITTEE
AT CHRISTCHURCH
IN THE MATTER of the New Zealand Rules of Harness Racing
IN THE MATTER of Information No. A1683
BETWEEN S P RENAULT, Stipendiary Steward for the Racing Integrity Unit
Informant
AND SHELDON PHILLIP MURTHA, Licensed Advanced Amateur Driver
Respondent
Judicial Committee: Mr R G McKenzie (Chairman), Mr D Jackson (Committee Member)
Date of Decision: 29 July 2016
DECISION OF JUDICIAL COMMITTEE ON PENALTY
Background
[1] Mr Murtha was charged that, at the meeting of New Zealand Metropolitan TC held at Addington Raceway on 29th April 2016, as the driver of NUI TOC TIEN in Race 1, Hydroflow – Bishopdale / Bush Inn TAB’s Mobile Pace, he failed to take all reasonable and permissible measures to ensure his horse was given full opportunity to win the race or to obtain the best possible position and/or finishing place, a breach of Rule 868 (2) of the New Zealand Rules of Harness Racing.
[2] In a reserved decision dated 12th July 2016, the Committee found that the charge had been proved.
[3] The Committee has now received written submissions in relation to penalty from both parties.
Submissions of the Informant
[4] Mr Renault presented the following submissions
(1) In considering penalty, the Judicial Committee should have regard to the gravity of the breach, the outcome of the race and whether race goers were affected by the breach, and the personal circumstances of the Respondent.
(2) Mr Murtha has a clear record under this Rule. He has driven 74 races lifetime, 13 this season and 13 last season.
(3) The starting point for a breach of this Rule is a 15 drive suspension or a $750 fine. Stewards believe the appropriate penalty is one of a suspension and fine combined.
(4) Recent charges in relation to Amateur Drivers under Rule 868(2) are -
Wilmott 2016 – Suspended 2 months and fined $300
Hallett 2015 – Suspended 2 months and fined $300
Blake 2015 – Suspended 8 weeks and fined $400
(5) All three aforementioned drivers admitted a breach of this Rule and were given credit for their admission.
(6) The only mitigating factor in this case is the fact that Mr Murtha has not breached this Rule before.
(7) Any suspension must be a meaningful one. All three drivers in the recent cases drive in every amateur race where possible, which is approximately 2 drives per month.
(8) Based on the facts regarding Mr Murtha’s frequency of drives. It would be correct in saying that he only drives about once per month. Any suspension must be longer than the cases referred to as a result of this.
(9) Stewards submit that a period of suspension of 3 – 4 months and a fine of $300 - $400 is appropriate.
(10) Stewards make no application for costs.
Submissions of the Respondent
[5] Mr Murtha filed written submissions. Much of the content of those submissions was not relevant to penalty but was rather a criticism of the Stewards’ racenight procedure, the conduct of the hearing and this Committee’s decision. Accordingly, we have not addressed that part of Mr Murtha’s submissions.
[6] Mr Murtha’s relevant submissions may be summarised as follows:
(1) Mr Murtha is an amateur driver and not a professional.
(2) Mr Murtha has been driving since the inception of amateur racing and has a clear record of any driving offences.
(3) Mr Murtha is currently and has been heavily involved in the development and promotion of harness racing for a number of years.
(4) The race was at the lower end of the spectrum in terms of stakes and status as an amateur drivers’ race.
(5) Unlike the Hallett and Wilmott cases referred to in the Informant’s submissions, this was not a situation of driver error due to a lack of awareness in a race but was more a situation of deliberate tactics in a race not proving successful.
(6) Mr Murtha should not be penalised for defending the charge against him as opposed to making an early guilty plea. The reason for this is that it took the Stipendiary Stewards two weeks to file the information against Mr Murtha as opposed to charging him on the race night. This indicated that there was at least some uncertainty as to whether or not a charge was appropriate which justifies Mr Murtha defending the charge.
(7) If a suspension of Mr Murtha’s licence is imposed, the recent cases against amateur drivers under this Rule have imposed the following penalties:
• Yoakley (March 2015) – 11 weeks’ suspension
• Blake (May 2015) – 8 weeks’ suspension, $400 fine
• Cronin (May 2015) – 10 weeks’ suspension
• Hallett (December 2015) – 2 months’ suspension, $300 fine
• Wigg (February 2016) – 8 drives (suspended 28 January to 31 May 2016)
• Wilmott (June 2016) – 2 months’ suspension, $300 fine.
(8) In the Wigg case, the Committee made the comment:
We do not know how many drives that those suspensions involved and it is difficult for raceday Committees to calculate drives for Amateur Drivers.
We are going to deal with this suspension in terms of drives (rather than weeks) as provided by the guidelines and we believe that a suspension of Ms Wigg’s Licence until the 31st May will involve approximately 8 drives.
(9) It is submitted that if a penalty is imposed on Mr Murtha, it is more appropriate that it should be calculated in terms of raceday drives rather than months or weeks.
(10) If a suspension is to be imposed, given the circumstances of the case and the conduct in the other cases mentioned above, a suspension of no more than 4 weeks and a $200 fine is appropriate.
Reasons for Penalty
[7] The starting point, as always, for this Committee in deciding an appropriate penalty is the Penalty Guide for Judicial Committees. In the case of a breach of Rule 868 (2), the Penalty Guide provides a starting point of “15 drives or $750 fine”. The Guide provides that Judicial Committees are expected to operate within the guidelines set out.
[8] From that starting point, we need to have regard to the various aggravating and mitigating factors. We must take into account the gravity of the offending and the desirability of consistency with how similar offenders committing similar breaches in similar circumstances have been dealt with.
[9] The principal aggravating factor is the consequential effects on the connections of the horse and the betting public who supported NUI TOC TIEN, the each-way favourite for the race. Those who invested on the horse were denied a run for their money and the owners of the horse were denied the opportunity of competing for a stake.
[10] The principal mitigating factor is Mr Murtha’s previous good record under the Rule in just over 70 career drives as an Amateur Driver. Mr Murtha has submitted that he should not be penalised for defending the charge and the Committee accepts that submission. An admission of a breach of the Rules is a mitigating factor when it comes to penalty, but defending a charge is not an aggravating factor but, rather, the absence of that mitigating factor.
[11] Although not an aggravating factor, but rather the absence of a mitigating factor, Mr Murtha has displayed a lack of insight and understanding as to the charge, which is of concern. It was put to Mr Murtha at the hearing by the Committee that the Rule required a horseman to take all reasonable and permissible measures to finish in the highest possible finishing position. In response, Mr Murtha replied:
You are always trying to win the race. You are trying to drive your horse to win the race. You are not sort of mentally concerned with running 4th or 5th or 6th , or 3rd or 2nd – you are actually trying to win the race.
And earlier, he said:
Yeah, but I think the Rule is sort of in that way that if we all go out there and decide that we’re just going to finish in the best possible position we, you know, we’re all breaking that Rule for a start. If I go out there saying well as long as I finish in the top three . . .
[12] There are a number of helpful previous cases involving amateur drivers and breaches of Rule 868 (2). Penalties handed down by Judicial Committees in those cases ranged from suspensions between eight weeks and four months and, in three of the cases involving an 8 weeks’/ 2 months’ suspension, fines between $300 and $400. Mr Murtha, in his submissions, attempted to distinguish two of those cases claiming that they involved “driver error due to a lack of awareness in a race” whereas, in his own case, it was a “situation of deliberate tactics in a race not proving successful”, he submitted. We disagree. All cases, including the present case, involved some error of judgement on the part of the driver, so serious as to be culpable.
[13] Mr Renault has submitted that an appropriate penalty would be a suspension of 3-4 months and a fine of $300-400, no doubt basing that submission on the other cases referred to. For his part, Mr Murtha has submitted for a suspension of no more than 4 weeks and a $200 fine which, we note, is approximately half of the penalty imposed in the Blake, Hallett and Wilmott cases.
[14] Mr Murtha further submitted that the Committee should give consideration to a penalty based on a number of drives rather than weeks or months. In support of that submission, he referred to the Wigg case in which, although the Committee imposed a suspension of 8 drives, the effective term of suspension as expressed in that decision was four months.
[15] This Committee is also inclined to calculate the suspension in this case in terms of number of drives. In doing this, we have looked at Mr Murtha’s driving record over the past three seasons. In the current season for Amateur Drivers, Mr Murtha has had 13 drives to date, in the 2014/2015 season he also had 13 drives and, in the two seasons before, 2013/2014 and 2012/2013, he had 16 and 17 drives respectively. So, Mr Murtha averages approximately 15 drives per season.
[16] The Committee notes that, in all of the other cases referred to by Mr Murtha in his submissions, the Respondent had admitted the breach and was given appropriate credit for doing so. As stated above, Mr Murtha can receive no such credit. The only credit available to Murtha is for his good driving record.
[17] The Committee agrees with the comment of the Judicial Committee in Wigg that “it is difficult for raceday Committees to calculate drives for Amateur Drivers”.
[18] Weighing all factors in this case, the Committee is of the view that a suspension for 10-11 drives is appropriate. Applying this to Mr Murtha’s driving statistics as set out in paragraph [13] above, this would equate to a term of suspension of 8 months.
[19] However, it has been the practice of Judicial Committees to impose a mixed penalty of a term of suspension together with a fine. The reasoning behind imposing a fine is to shorten the period of suspension. The Penalty Guide provides that Judicial Committees should equate one drive with a fine of $50.
[20] On this basis, the Committee has decided to reduce the period of suspension from 8 months to 4 months (4-5 drives approximately) and, in addition, to impose a fine of $300 intended to equate to approximately 6 drives.
Penalty
[21] Mr Murtha’s Advanced Amateur Driver’s licence is suspended from after the close of racing on Sunday, 31st July 2016 for a period of 4 months to 1st December 2016, on which date he may drive.
[22] In addition, Mr Murtha is fined the sum of $300.
Costs
[23] There will be no order as to costs.
R G McKENZIE D JACKSON
Chair Committee Member
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